Religious Freedom and the Love of God

John
H. Garvey, Esq., President,The
Catholic University of AmericaAddress
given at the USCCB 2012 June General Assembly

Next week we begin the
celebration of a Fortnight for Freedom. It
starts on June 21, the vigil of the feast of St. Thomas More (and St. John
Fisher). I want to say two things about More's
death.I will come back to them at the
end. The connection between them is the
point of my remarks.

First, More died
because he loved God. Henry VIII split
from the Catholic Church and had Parliament pass the Act of Supremacy (making
him head of the Church of England) and the Act of Succession (making Anne
Boleyn the queen). More refused to
subscribe to the Acts.He tried to avoid
a confrontation by resigning as Lord Chancellor, but Henry pursued him. And love for God and respect for the
authority of the church compelled him to refuse the oath when it was forced on
him. He died saying he was "the king's
good servant, but God's first."

Second, religious
liberty is important.More's death was
noble – he became a saint. It's
admirable to die for your religion if there is no alternative. But it would be a better world if we didn't make
people take that course. We protect the
freedom of religion because we think it is wrong to coerce belief. Thomas More's story shows what can happen when
these protections break down.

Decline in Respect for Religious Freedom

We are not the kind of
violent and intolerant society Tudor England was. But in recent years the landscape of
religious freedom has changed. Its
purview has narrowed considerably.Let
me give six examples.

1. EEOC
– The Ministerial Exemption

Five months ago the
Supreme Court decided an important case, Hosanna-Tabor
Church v. EEOC. Certain employment
discrimination laws (race, sex, age, handicap, etc.) authorize employees who
have been wrongfully terminated to sue for reinstatement and damages. The question in Hosanna-Tabor was whether a minister could sue a church under one
of these laws. The plantiff (Cheryl
Perich) was a religion teacher in an Evangelical Lutheran grade school who
claimed she had been the victim of handicap discrimination. Teachers like Perich perform pastoral
functions. They must receive a 'call'
from the congregation. They are
commissioned in a public rite.

I am happy to say that
the Supreme Court held for the church. It's
hard to imagine the government telling Lutherans whom they can hire as
pastors.(Could the EEOC order the
Catholic Church to ordain women?) As the
Court saw it, called teachers are not very different. This unanimous decision was a big win in the
judicial branch.

The disappointing thing
is that the executive branch took such a dim view of the church's right. We might expect that the EEOC would side with
the employee. But the Solicitor General
of the United States argued that churches had no more rights in cases like this
than would a labor union or a social club. The Supreme Court took the unusual step of calling this view
"remarkable."

2. NLRB
– Collective Bargaining Exemption

The Labor Board has
made its own efforts to exercise authority over religious teachers. n two recent cases NLRB Regional Directors
have held that Manhattan College in New York and St. Xavier University in
Chicago are not Catholic schools for purposes of exemption from the Wagner
Act.The Board therefore allowed the
adjunct faculty at each school to hold an election about forming a union.The schools have appealed to the full Board.

The Supreme Court has
held that the Wagner Act does not apply to lay teachers in Catholic high
schools (shades of Hosanna-Tabor),
because it's their job to instruct students in the faith. Congress would
not want the Labor Board to
review their work. Should we have a
different rule for colleges?T he Board
thinks we should, and its view is very much like the EEOC's. The Board
maintains that Catholic teachers
are exempt only if they engage in "indoctrination" and
"proselytizing. "College teachers and students live in an
environment of academic freedom. Students don't have to attend
mass. Schools may hire non-Catholic faculty. Boards of trustees are
dominated by lay people, not clergy and members
of religious orders. This openness means
(to the NLRB) that they should be subject to regulation.

This enthusiasm for
regulating labor relations at Catholic colleges may just be an application of
the policy of supporting unions, which the administration has shown in other
sectors. But it shows a disappointing
ignorance of, or disregard for, the way faith is communicated among intelligent
adults.F aith is not an unthinking
adherence that we come to only if we are forced, or swept along by a wave of
mindless enthusiasm. Nor are the things
we believe formulae we commit to memory, as fourth graders learn the catechism
or ninth graders the axioms of geometry. Catholic universities bring their students and faculty to a better
knowledge and love of God by appeals to the intellect and examples of
virtue. These can't be persuasive unless
they occur in an atmosphere of academic freedom. The government should not make a rule that
exempts only those colleges that conform to its (fairly ill-informed) view of
how religion should be taught. Better to
leave that to the Church.

3. HHS
– Mandated Services

The Department of
Health and Human Services has lately taken on religious institutions as well –
not just colleges and universities, but also lower schools, hospitals, social
service organizations like Catholic Charities, and so on. On January 20 it announced a final rule
ordering group health plans to provide, at no added cost to subscribers, surgical
sterilizations and all FDA approved contraceptives (including those that may induce
abortions early in pregnancy). This
means, for instance, that The Catholic University of America must offer these
services to undergraduates who subscribe to its health plan, even though we
view sterilization, contraception, and abortion as moral evils.

The HHS regulations
provide an exemption for "religious employers. "But it takes the same narrow view of 'religion' that we see with the
EEOC, the Department of Justice, and the NLRB.HHS says that an employer, to be "religious," must exist for "the purpose" of "inculcat[ing] religious
values." At Catholic University we
promote religious values in nearly everything we do. But we also teach physics, mechanical
engineering, finance, and the literature of francophone Africa. Offering courses in those subjects, it seems,
would disqualify us.

Exempt organizations
must also "primarily" employ and serve "persons who share the religious tenets
of the organization. "If this means that
a school's faculty and student body must 51% Catholic, The Catholic University
of America would pass the test, but many Catholic colleges and universities,
and some elementary and secondary schools, would not. Nor would organizations
like Catholic hospitals and Catholic Charities that serve poor people without
regard to their religious affiliation.

HHS has approached this
question with the same narrow view of religion the NLRB took in deciding to
allow collective bargaining at Catholic universities, and that the Solicitor
General argued for in applying the ADA. All
three agencies would reduce religion to prayer and liturgical rituals –
activities that occur inside church walls. There is no acknowledgment that
faith has a place in the world – that it informs our education, that it
performs corporal works of mercy. HHS has
told us that no matter what message we preach about contraception,
sterilization, and abortion, we must provide these "preventive services" in our
employee and student health plans, and ask the members of our community to
subsidize them in the fees we charge.

There have, as you
know, been further developments since January 20. On February 10 the President announced that
he would ask HHS to revise its rule and ask insurance companies to make the
payments for "preventive services." But
our insurance company would then debit our account for the amount of the
payment, so this doesn't really improve the situation. Two weeks later the Blunt amendment – which
would have provided wider conscience protection – was voted down 51-48 in the
Senate.

On May 21, 43 Catholic
institutions, including The Catholic University of America and the (arch)dioceses
of Washington, New York, St. Louis, Pittsburgh, and Dallas, brought suits to
enjoin the mandate.

4. HHS
– Conscience Protection

In 2008 HHS issued a
rule to protect doctors and hospitals that counsel pregnant women from being
sued for not presenting abortion as a medical alternative.Without such a rule, professional bodies like
ACOG could put conscientious doctors out of business by revoking their board
certification. And a plaintiff could use
ACOG's informed consent requirement to help build a malpractice case against
any doctor who failed to suggest abortion as an alternative.

Last spring HHS, at the urging of a new administration,
repealed the regulation despite public comments that ran two-to-one in favor of
it.

5. HHS – Human Trafficking

The USCCB Office of
Migration and Refugee Services has devoted a lot of attention to the victims of
human trafficking, supported by grants from HHS. The victims are often people who began as economic
migrants or refugees. This $10-billion
business affects somewhere between 700,000 and 2 million people each year,
mostly women and children sold for labor slavery or sexual exploitation.

HHS has recently made
this another front in its battle for progressive sexual practices. The National Human Trafficking Victim
Assistance Program now asks participating organizations to provide the "full
range of reproductive services" to trafficking victims and unaccompanied minors
in its cooperative agreements and government contracts.1

An
applicant that is unwilling to provide all of the services and referrals [I
have mentioned] may apply for a grant. However, [HHS] will give strong preference to applicants that are
willing to offer all of the services and referrals delineated in this
paragraph.

This issue is slightly
different from mandated services and conscience protection, because the
requirement to provide "reproductive services" is imposed only on grant
recipients. Migration and Refugee
Services is free not to apply for grants.But it is a departure from the more liberal approach we have
traditionally taken in this area, where religious groups living the gospel have
been welcome to help. Now, they will
have to violate their own conscientious obligations in order to take part.

6. D.C. City Council – Gay Marriage

Catholic Charities in Washington serves
68,000 people, including one-third of the city's homeless population. It provides adoption and health care services
to thousands of others. When the
District of Columbia considered a same-sex marriage law in November 2009, the
Archdiocese asked for an exemption from rules that would force it to support
gay marriage by doing things like paying spousal insurance benefits and placing
foster children with same-sex couples. The City Council refused. One Council
member referred to the Church as "childish." Another said he would rather end the city's relationship with the church
than give in to its request. When the
law went into effect the Archdiocese had to close its 80-year-old foster care
program. And it announced that it would
have to stop providing spousal insurance benefits to all new employees, gay and
straight.

Why Has This Happened?

My mom used to use the
expression "Two ducks flying in a row" to describe the error of drawing
inferences from too little data. But
this is not just two ducks. I have
mentioned six recent examples – high profile cases that were not handled badly
through inadvertence. Why has this
happened?

One thing we can say is
that there has been a decline in respect for religious liberty. We can
measure this in two ways. Think about a suit of armor. One measure of its
protection is its scope,
or the extent of its coverage.(A
bulletproof vest covers the heart and lungs. A knight's armor covers from
head to toe.) The other measure is its strength. (A suit of armor will
protect the knight
against arrows but not against armor-piercing bullets.)

Religious liberty these
days is given a lot less scope. It
protects priests but not teachers, Loyola but not St. Xavier, religious orders
but not hospitals. Religious organizations
like schools, hospitals, and Catholic Charities provide the public with
valuable services. The government lets
them do this work, but it is blind to their religious dimension. The problem with this way of parsing the work
of religious institutions is that they do their work because of their religious
beliefs. Catholic Charities does
adoptions because the gospel tells us to care for the weak and vulnerable.Catholic universities exist because the
gospel tells us to teach all nations. Migration
and Refugee Services lives out the teachings of the Sermon on the Mount and Matthew
25.This is the heart of the Christian religion.Serving others – not just Catholics; all others – is not just a
recommendation. It's a requirement.

Religious liberty also
has less strength.It is weaker than it
once was. This happened as a matter of
constitutional law in 1990 when the Supreme Court traded the rule of Sherbert v. Verner 2
for the rule of Employment Division v.
Smith. 3 The first amendment rule once was that
religious liberty is protected unless the government has a compelling reason to
override it – like protecting the national security in time of war, or
preventing the taking of innocent life.Now the rule is that religion is protected against discrimination; but
otherwise the government can ignore religious claims for any legitimate reason (like
the aesthetic preferences of a historic preservation code).

Smith
invited religious people to seek protection from the elected branches of
government rather than the judiciary, as a matter of statutory and regulatory law
rather than constitutional law.In the
last year we have seen the elected branches deny that protection.When the law forces Catholic Charities to
choose between living the beatitudes and affirming behavior (like gay marriage)
that the Church proscribes, freedom of religion is altogether lost. Catholic Charities has to set aside one or
another of its beliefs: either the charity or the obedience they are called to
in the gospel.

So there has been a
decline in respect for religious liberty.But why has that happened?We are a nation begun as a haven for people
who were different from the cultural mainstream in their religious
observance.Our early heroes – the
Pilgrims, Roger Williams, William Penn, Lord Baltimore – are people who struck
out from home in search of religious freedom.The Baptists and Presbyterians of Virginia made protection for free
exercise a condition of supporting the Constitution.Why have we come to treat it so casually?

I have an idea, and I
think it says something important about why we protect religious freedom.It is an axiom of liberal theory that people
can not agree on what is good; instead each person should have as much freedom
as possible to pursue the good as he sees it.This is the meaning of John Rawls's phrase, "the right [freedom] is
prior to the good."The problem with
this theory is that it does not explain very well the system of rights and
freedoms we actually have in the United States. The Constitution only protects a few freedoms: speech, press, association,
religion, and some activities related to marriage and families. It does not give much protection to other
pursuits. There is no constitutional
right to work as an optometrist, hunt, fish, drink whiskey, play baseball, or
drive a car.

The reason for this, I
have argued,4
is that liberal theory has it upside down. We protect the freedom to do only a few things, and we single them out
because those are good things to do. We
protect religious freedom, for example, because we believe it is a good thing
to know, love, and serve God. Other
kinds of actions (practicing optometry, let us say) have a lower moral valence,
so they get less protection.In other
words, the good is prior to the right.

One of my favorite
books on the origins of the first amendment is a little volume by Mark DeWolfe
Howe called The Garden and the Wilderness. In it he makes this seemingly prosaic
observation: "Though it would be possible . . . that men who were deeply
skeptical in religious matters should demand a constitutional prohibition
against abridgments of religious liberty, surely it is more probable that the
demand should come from those who themselves were believers. "To put it more simply, we protect religious
freedom because we think that religion is a good thing. The Pilgrims, Catholics, Quakers, and other
nonconformists who settled these shores came here because they saw it as their
duty to know, love, and serve God, and they wanted a place where they could do
that without hindrance.

Let me return now to
the question I have left hanging. Perhaps
the reason we see a loss of religious freedom today is that we are turning a
corner in our collective view of religion.We are not exactly like France, where only 4.5% of Catholics go to mass
weekly (down from 27% in 1965). But we
are measurably less religious than we were a few decades ago. Charles Murray published a book earlier this
year entitled Coming Apart.5 Murray reports that among white working class
Americans the number of people who profess no religion or attend a worship
service no more than once a year has gone up from 38% to 59% (21 points) in the
last 40 years.6 During that same period the number of
marriages among working class whites has gone from 84% to 48%. The number of births out of wedlock among the
same group rose from 6% to 44%. Murray
argues that the civic culture that defined the American way of life has
unraveled over this period.

I wonder whether there
is a connection between this issue and the recent popularity of writers like
Sam Harris,7
Christopher Hitchins,8
Richard Dawkins,9
and Daniel Dennett.10 The interesting thing about them is that
their arguments are so often combative, even offensive. Here is what Sam Harris has to say about our
concern:11

I
hope to show that the very ideal of religious tolerance – born of the notion
that every individual should be free to believe whatever he wants about God –
is one of the principal forces driving us toward the abyss.

I'm just thinking out
loud. But it might be that the argument
for religious freedom lies farther back than we have put it. Preserving religious liberty may not be a job
for lawyers like me.It may be a job for
lawyers like Thomas More. Our society
won't care about religious freedom if it doesn't care about God. That's
where reform is needed. We won't have –
and we probably won't need – religious exemptions for nurses, doctors,
teachers, social workers if no one is practicing their religion. The best
way to protect religious freedom might
be to remind people that they should love God. This is, after all, why we
have a first amendment. And why in better times we have not needed to
rely on the Constitution at all, because we could depend on our elected
representatives to respect our liberty.

The tragedy of Thomas
More was that he had to die because he loved God. He could not be both a good subject and a
faithful Catholic. Our tragedy is
different, though it is no less about the protection of religious liberty. The mechanisms to preserve religious liberty
only work when people care about their religion. Religious liberty will expand or contract
accordingly. Saving religious liberty
means reminding people that they should love God. Thomas More taught us that we need religious
liberty. More importantly, he taught us that loving God is worth dying
for.If that is so, then the freedom to
love God is worth the fight. That's the
message we need to get across.I think
that asking people to keep this cause in their prayers during the Fortnight for
Freedom is precisely the right remedy for what ails us.

John Garvey

June
13, 2012

[1]
Department of Health and Human Services,Administration for Children and Families, Office of Refugee
Resettlement, National Human Trafficking Victim Assistance Program, HHS-201-ACF-ORR-ZV-0148
(2011).

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